Josh Hochman (Yale Law School J.D. '24) has posted The Second Amendment on Board: Public and Private Historical Traditions of Firearm Regulation (Yale Law Journal, forthcoming) (43 pages) on SSRN. Here is the abstract:
This Note argues that the Supreme Court’s Second Amendment jurisprudence allows, and may require, courts to consider sources of analogical precedent outside of formal lawmaking. Taking public transportation as a case study, this Note is also the first account to chart how historical firearm regulations in sites of transportation should inform the constitutional basis for regulating guns in contemporary trains and subways. Surveying rules and regulations promulgated by railroad corporations in the nineteenth century, it argues that these sources reveal an historical tradition of regulating passengers’ firearms. This case study instructs that courts and litigants can honor Bruen’s history-based test only by considering all of the nation’s history of firearm regulation, not just statutes.
Agreed. Pre- and post-enactment practices can be important context for establishing original meaning. There's no reason to limit this contextual inquiry to enacted statutes. If Bruen suggested otherwise, it shouldn't have (but I don't think it did).
Posted at 6:09 AM